Chair of the United Nation’s Independent International Commission of Inquiry on the Occupied Palestinian Territory, Navi Pillay, says she is appalled that some Western powers are opposed to a general assembly referral to the International Court of Justice to declare Israel’s occupation unlawful.
She was delivering the closing address at the University of KwaZulu-Natal’s international symposium on the question of Palestine, Israel and South Africa’s genocide case, on Tuesday.
Pillay, who was the former president of the International Criminal Tribunal for Rwanda, said the UN’s general assembly referred the questions on the lawfulness of the occupation to the International Court of Justice to deliver an advisory opinion.
She said the referral has been met with opposition from certain Western proponents, such as the US and Europe, who claim it would undermine the peace process.
“I’m really appalled by this. We needed the might of the general assembly to ask the ICJ to deliver an advisory opinion. On February 19 there will be a hearing regarding this.”
She praised South Africans for taking a stand against the killings in Gaza.
“We came to hear you. Being a South African I fully understand the calls for action, the strategies that civil societies have in mind. Some have even started campaigns for the one side or the other.
“Now we are independent UN commissioners. We have to be impartial and not take sides.”
Pillay said they have been accused of being biased and battering Israel.
“We set out in our very first report that we fully recognise that we are not dealing with two equal parties to a conflict.
“One is the occupier, the oppressor, and the other is the occupied, the oppressed. There is no such thing as balancing. We know this going on right now. We stick to the law, we stick to the facts.”
She said South Africa’s case on whether genocide is being committed against the Palestinian people will be protracted.
“The commission’s meetings in various countries engaging with students, academic and civil society on Palestine and Israel are very important to us. After October 7, we have had many people come to us saying they are afraid to criticise Israel.
“What a pleasure for my fellow commissioner and I to hear South Africans speak so freely.”
Pillay said her commission has had to deal with various obstacles.
“I have to share some of the obstacles we have encountered. Then you will understand the double standards Western states have towards developing countries or projects they don’t support.
“In our case, the Human Rights Council established this commission. Its legal status is that we the commission are a subsidiary body of the general assembly. The general assembly is in charge of allocating our funding. The deputy high commissioner in Geneva motivated a budget for 24 staff.”
Pillay said the budget and staff numbers were slashed.
“In the US Congress, the Republican senators who support Israel were really praising themselves for having cut our budget. You have to wonder what kind of multilateral institution is this where states that don’t support certain commissions can cripple that commission.”
Christopher Sidoti, a commissioner with the UN’s Independent International Commission of Inquiry on the Occupied Palestinian Territory who, among the speakers at the symposium, said in December 2022 the general assembly of the United Nations referred to the International Court of Justice questions dealing with some aspects of the Israel/Palestine conflict.
“That referral came directly as a result of the work of our commission of inquiry. In our first report to the general assembly in October 2022, we discussed our views on the lawfulness or otherwise of the occupation since 1967.
“We looked at the facts and the law and came to the conclusion that it was unlawful. So we made a recommendation to the general assembly that this issue be addressed.
“We think we are pretty good, but we accept the fact that the ICJ is more authoritative than us. We wanted the highest court in the United Nation’s system to address that issue.”
On the face of various facts, state parties to the Genocide Convention are not only entitled to bring an action before the ICJ, I would argue they have an obligation to do so.
— Christopher Sidoti, UN commissioner
But Sidoti said the commission has received pushback from some states.
“The principal argument against the referral is that it would undermine the peace process and that these issues should be left for negotiations and resolution between the parties.
“We saw the referral to the ICJ as being helpful to the peace process when it is finally revived. It is a means for which some floor can be set, below which the parties can’t go in their negotiation process.
“To me, to say the referral to the ICJ would undermine the peace process was a complete distortion of international law and the role of the court. We were pleased when the referral was made and that the court has started acting on it already.”
Turning his focus to South Africa’s genocide case against Israel, Sidoti said while genocide is difficult to prove, he was pleased South Africa had pursued the matter.
“Some of the arguments mounted by the state of Israel are contrary to the findings in the Gambia/Myanmar genocide case, only three or four years ago.”
Sidoti said in many respects the orders made last week by the ICJ were expected on the basis of what happened in the Myanmar case.
He believes South Africa was justified in pursuing the case.
“There are enormous numbers of people who have been killed. There are enough facts to raise questions, and in addition to that, you have statements being made by political, military Israeli leaders.
“On the face of various facts, state parties to the Genocide Convention are not only entitled to bring an action before the ICJ, I would argue they have an obligation to do so.
“The Genocide Convention says that all state parties are obliged to act to prevent genocide and to address a significant risk of the occurrence of genocide.
“South Africa was justified. It had an obligation to do something and is its right as a sovereign state.” Sidoti believes criticism mounted against South Africa taking the case “is not really legal but ideological, political and emotional criticism”.
Dr Imtiaz Sooliman, founder of NGO Gift of the Givers, has called for Israel’s Prime Minister Benjamin Netanyahu to be charged for war crimes.
Sooliman, who also addressed the symposium, said the killing of a staff member in Gaza, prompted him to call for the Israeli leader to be hauled before the International Criminal Court.
“We have spoken to the legal team representing South Africa to take Israel Prime Minister Benjamin Netanyahu to the ICC for killing my staff member, his brother and 150 family members. We have given evidence, and we can get much more evidence from Palestinians.
“Can we charge Netanyahu and Israel for war crimes and reparation? We need to charge them for that.”
Sooliman described Gaza as a “wasteland”, saying healthcare workers have been killed, kidnapped or have disappeared.
“The institutional knowledge of the best brains of Gaza have been wiped out, deliberately targeted. We need to send in replacement knowledge and skilled healthcare workers. More than that, we need trauma counsellors.
“On day 10 our teams spoke about genocide, massacre, mass killings and major displacement. Sooliman said apart from the aid that Gift of the Givers is trying to give Palestinians, they want to take in lawyers to ‘record and be witnesses for crimes against humanity’.”
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